Southern Express Co. v. Hill

• Citation: 98 S.W. 371
• Parties: SOUTHERN EXPRESS CO. v. HILL.
• Decision Date: 26 November 1906
• Court: Supreme Court of Arkansas

98 S.W. 371

SOUTHERN EXPRESS CO. v. HILL.

Supreme Court of Arkansas.

November 26, 1906.

Appeal from Circuit Court, Howard County; James S. Steel, Judge.

Action by J. W. Hill against the Southern Express Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Appellee sued appellant for the loss of a box of clothing which he alleged was delivered to appellant at Memphis to be shipped to J. W. Hill at Nashville, Ark. Appellee alleged that appellant refused and neglected to deliver the box of clothing to him at Nashville, Ark. He alleged that the box of clothing was of the value of $210, and prayed for judgment in that sum. Appellant denied all material allegations of the complaint and set up that the alleged box of clothing was delivered to it marked "J. W. Hill, Nashville, Tenn.," and that it was by appellant transported to Nashville, Tenn., and that appellant having made every reasonable effort to locate the consignee, J. W. Hill, at Nashville, Tenn., and, having failed, sold the box at "Old Hoss" sale in accordance with the laws of Tennessee. Appellant also set up "that, by the terms, stipulations, and conditions of the receipt given by appellant for the said box of clothing the liability of the carrier was limited to the sum of $50, and that said shipment was made on these terms at a lower charge for transportation than is charged where the maximum liability may exceed this sum." Appellant also set up that appellee's agent, one Johnson, who delivered the box to appellant, marked it consigned to "J. W. Hill, Nashville, Tenn.," and that this act of appellee through his agent, Johnson, was a direct contributory cause to the miscarriage of such shipment. Appellee adduced evidence tending to prove that he delivered to appellant the box in controversy through his agent the Memphis Millinery Company, or T. D. Johnson, who was in its employ. That appellant receipted the Memphis Millinery Company for the box, the receipt reciting that the box was marked "J. W. Hill, Nashville, Ark.," also that the holder of the receipt would not demand of appellant a sum greater than $50 for the loss or damage to the box, and that in no event should appellant be liable for any loss or damage unless the claim therefor was presented in writing at the Memphis office within 90 days from the date of the receipt, and that the claim must be made in a statement to which the receipt must be attached. Appellee showed that he had never received the box of clothing, and that he had made diligent inquiry for same. He proved that the value of its contents was over $100. Appellant, on cross-examination, elicited from appellee the information that he (appellee) did not see the receipt executed, and did not know the name signed to it, and did not know that the person signing the receipt was an agent of the company, whereupon appellant objected to the receipt as evidence, and the objection was overruled. The appellant adduced evidence tending to prove that appellee left the box of clothing with one T. D. Johnson, who was in the employ of the Memphis Millinery Company, to be sent to appellee at Nashville, Ark., and to be marked or addressed by the said T. D. Johnson accordingly. But instead, said box was addressed "J. W. Hill, Nashville, Tenn." Appellant also adduced evidence tending to show that the box weighed only 20 pounds, and that it was not worth over $25. The court, at the request of the appellee, gave the following instructions: "(1) The court instructs the jury that, if they believe from a preponderance of the evidence that the plaintiff, J. W. Hill, delivered the box of goods sued for in this action to one Mr. Johnson, to be by him addressed to `J. W. Hill, of Nashville, Ark.,' and then to deliver to the express company to be transported and delivered to J. W. Hill, at Nashville, Ark., and that said box was delivered to said express company by said Johnson, and that said express company failed or neglected to deliver the same to the plaintiff, you will find for the plaintiff whatever sum the proof shows the clothing was worth. (2) The court instructs the jury that a public carrier is liable for goods lost by misdelivery whether the misdelivery occurs by mistake or by fraud or imposition practiced upon it, unless the fraud, mistake, or imposition were the acts of the plaintiff or his agent. (3) The court instructs the jury that the burden of proof is on the defendant in this case to show that the box of goods was addressed to `J. W. Hill, Nashville, Tenn.,' instead of `J. W. Hill, Nashville, Ark.,' provided the express company delivered its bill of lading to the plaintiff or his agent showing that the box of goods was addressed to `J. W. Hill, Nashville, Ark.'" The appellant properly saved its several exceptions to the giving of every one of said instructions. The court at the instance of appellant gave, among others, the following instructions: "(1) The jury are instructed that the burden of proof is on the plaintiff, J. W. Hill, to show, by a preponderance of competent evidence, every fact necessary to authorize a recovery." "(3) The jury are instructed that, in the shipping and marking the box of clothing in controversy, the witness T. D. Johnson, acted as the agent of the plaintiff, J. W. Hill, and if the jury find from the evidence that, in addressing or marking the box in controversy for shipment, the said Johnson either inadvertently or otherwise marked or addressed the same, `Nashville, Tenn.,' instead of `Nashville, Ark.,' this will be the same in law as though done by the plaintiff, J. W. Hill, in person. (4) If the jury find from the evidence that the box in controversy was marked `Nashville, Tenn.,' instead of `Nashville, Ark.,' and that, but for it being marked `Nashville, Tenn.,' it would have gone to `Nashville, Ark.,' or that the fact...